tv Bill of Rights Book Festival CSPAN January 12, 2015 7:02am-8:01am EST
>> every weekend booktv offers programming focused on nonfiction authors and books. keep watching for more here on c-span2, and watching of our past programs online at booktv.org. >> ladies and gentlemen, welcome to the national constitution center. i am jeffrey rosen president of this wonderful institution. and since i started at the national constitution center in june 2013, i cannot imagine a more exciting day and bill of rights today which we celebrate today. before i start and explain why this is so hugely significant for the national constitution center, for philadelphia and for the u.s.a., want to begin by reciting a mandate from congress that the national constitution
center this goes to the. i see familiar faces in the audience. many of you know we are live on c-span all day today such as want to share this information that we have with our c-span viewers, and that is this. the national constitution center is a private nonprofit but it was created by congress on the bicentennial of the constitution to disseminate information about the u.s. constitution on a nonpartisan basis. and that means that we are the only place in america in these polarized times that invites people from all sides of the spectrum, left, right anyway between, to debate not political questions but constitutional questions, and let citizens make up their own minds. and as part of this inspiring mission i can't imagine a more exciting and momentous event than the one we're celebrating today on bill of rights day book festival been of the new exhibit at the national constitution center which displays one of the 12 original copies of the bill of rights. basically george washington on
october 2, 1789 sent out to the states 13 copies of the bill of rights and one copy to the federal government. 12 of those copies survive, and one of them is being installed in a beautiful together today at the constitutions of the it will be open for the next three years and includes rare original copies of the declaration of independence and constitution and it tells a story about the rights that were promised in the declaration of independence were implicit in the constitution and finally codified in the bill of rights. and this is one of the copies that has been at the new york public library for 100 years. thanks to a historic and beautiful agreement, the commonwealth of pennsylvania and the new york public library are sharing it for the next 100 years so we have it for three years until 2017 coincide with the 225th anniversary of the proposal and ratification of the bill of rights. it goes back to new york for three years and back to us and we will traded like a precious
constitutional football for the next 100 years of citizens around the country and the world can view this bill of rights and they can also see this incredible new interactive we've installed where people can click on any provision of the bill of rights, see it's a struggle in the seats and the revolutionary period and then watch the spread of that liberty, the constitutions across the globe. you can check it out at constitutioncenter.org and it's just a remarkable and visual experience about youth bill of rights has influenced liberty around the globe. ladies and gentlemen, i am now just so excited to be inaugurating the first of four book talks in the national constitution center's first ever bill of rights book there. we're so excited that is being broadcast live all day on c-span, and we invite our great constitutions of the audience to write down the questions on note cards and we invite viewers from around the country to tweet us your questions.
our handle is at constitution center, and use the hashtag ncc bill of rights, and as we talked for a bit of we'll take your questions. what so great about these four books is they relate to each other in a city waste and i'm glad we're starting with a question of free speech that was a part of the debate over the original bill of rights and we will broaden out to ideas about natural rights versus tradition express the thought of thomas paine and edmund burke and they will talk about the declaration of independence should or should not influence contemporary constitutional interpretation and have a great debate between two scholars of a different perspective and culminate in a wonderful new blog of john marshall, chief justice is led by the constitutional achievements of the framers and made the supreme court a coequal branch of government. so as robert said when his nominee for the supreme court come you're in for an intellectual feast, and i think
will also be a feast of constitutional education and debate and civic enlightenment. and with that introduction i am so excited to introduce to friends of rick this great new book, "the progeny: justice william j. brennan's fight to preserve the legacy of new york times v. sullivan" and they are a lee levine and stephen for me. lee is basically the leading first amendment libel lawyer in the u.s. anyone who has worked with him on those of his reputation would turn first to him if we had a knotty question involving press freedom or defamation. is an advocate as well as scholar, a partner in his law firm. is representing media clients and libel, invasion of privacy copyright and really first amendment cases for more than 25 years, recognized by the best lawyers in america and teaches at georgetown university. stephan verdier i've also known for many years.
he said professoprofesso r of practice and associate rector of the summer institute on law and government at the american university washington college of law, past chair of the aba section of individual rights and responsibilities, rights for scotusblog and is written of the great and defend the bug of justice brennan liberal champion which is also superb. so silenced your cell phones prepared to write down your questions on note cards c-span audience start tweeting your questions to at constitution cd-r using hashtag at ncc and will get right to it. lee, which is open this beautiful new exhibit one of the 12 original copies of the bill of rights but the first thing to stress is the first amendment which you talk to in your book was not the original first amendment. there are two others that appear at the top of the original bill of rights. one says congress can raise its
own cellar without an intervening election to begin the 27th amendment in the 1990s, and the original second amendment says has to be one representative for every 50,000 inhabitants. it that it has i think of the 4000 people in congress today. but why is it that the first amendment which we think of as the most important was not to the framers apparently the most important? >> there are a number of explanations for that possible. one is that as you know there wasn't an original debate over whether that we needed the bill of rights in the constitution, though a sense of the original constitution itself sent out explicit what government could do and what it couldn't do. and not what it couldn't do but what could you. and if it couldn't if it wasn't set out what to do, then he couldn't do it. so that one of the things congress couldn't do some people thought, was have laws that would abridge the freedom of speech and we did need a bill of rights to make that clear. there were others most notably
in madison and thomas jefferson thought that no they that need to be clear. we needed to list those things that the government could not take part in anything with those fundamental rights of being a citizen and democracy first among those rights were the freedoms of speech and press and religion and the other freedoms that it set out in the first amendment. >> that's a great and clarifying answer. madison certainly thought free speech was important to the end and he considered the most important in his original list which didn't pass would've prohibited the states as well as the federal government from abridging freedom of speech and the rights of religious conscious. it to support the passage of the 14th and to cheap medicines vision to apply the bill of rights against the states. steve, there is a crucial debate between madison and john adams at the time of the framing about the governments power to punish seditious libel. in other words, criticism of government officials either
false criticism or even true criticism. tell us about the act of 1790 which john adams passed to punish not his critics of his administration but not credits of his republican vice president, thomas jefferson. so is not exactly a neutral act. tell us about what that did and what james madison objections were. >> the authors of the first dynamic and its supporters believe they had won despite that in our new democracy the notion of seditious libel. seditious libel something that was very common in england. you could be punished for criticism of government officials in england particularly the king. punished criminally or civilly for bringing ridicule or disrepute on the king. the proponents of the first amendment thought they repeated that idea -- repudiated that i
get and put to rest but in 1798 led by john adams congress passed the sedition act which basically did just that. it made it a crime to bring disrepute to criticize the president in particular and what followed were a number of prosecutions. to a number of people jailed and fined for violation of the sedition act. this is a deep partisan divide. never critics of john adams. they went to jail, they paid the fine. s&s thomas jefferson became president, he pardoned them and even subsequent have the government we pay the fine. we haven't heard much about the sedition act since then until new york times v. sullivan which we'll get to shortly. >> great. league, because these between 1798 and "new york times" and sullivan involve some important cases about sedition around the time of world war i when
congress passed the espionage act of 1970 which is being invoked today impressed to prosecute journalists and set criticizing gore should basically be a legal because it might lead to the bad tendency of leading people to resist the war. holmes and brandeis famously decided upholding the sedition act to prosecution although homes changed his mind on that matter, to basically tell us about the debate over free speech on the time of the sedition act and how obvious was it to holmes, brandeis and others to criticize the government did violate the first amendment? >> is there is because the jimmy choo before, jeff, the bill of rights did not apply against state settle for a long time after the bill of rights were enacted. not until after the civil war when the 14th and would pass. so we have this long period
where their precious little about what the first amendment means and does it mean because the federal government by and large after the sedition act didn't try to do much to infringe what we would now commonly referred to as the freedom of the press or speech. it wasn't until world war i when, in the context of the war, the government started under the guise of the espionage act which was passed around the time of the war, to prosecute people who look back in hindsight were doing little more than criticizing the government. a majority of the court in those days upheld those prosecutions. such as -- this is brandeis and holmes wrote eloquent dissent suggesting that violated the first amendment. it wasn't until much later and ultimately, that the court back in brandeis and holmes' position vector cases along the way to be sure that kind of put us along that path but it wasn't until we
got to sullivan that the court through justice brennan put itself more square behind the trepidation of the first amendment that both comport with what jefferson and madison were saying back in the sedition act days, jefferson and madison back in the sedition act is and was what holmes in brandeis were saying at the time of world war i. >> i want to understand and i want our viewers to understand what exactly seditious libel is, what libel is a difference between truthful and false statements. so libel i gather is a false statement damaging to someone's reputation but at the time of the sedition act couldn't the sedition be true and together couldn't british law, the greater the truth, the worst the offense? so tell us about the distinction of libel which is false and seditious libel which -- >> definitely true. the original seditious libel context at stephen decatur we inherited from england was come
speech only had to be disparaging of government disparaging of the king the people running this government. it didn't matter if it was true. as you said truth somehow made it worse. it increase the harm to reputation. common-law libel is the kind of libel that became the centerpiece of new your times versus sullivan at all the cases that came after it was slightly different. that was libel, outlaw of libel was the kind of lawsuit that you or i could bring against somebody who said something that injured our reputation in the early days, and then the common law of england we inherited truth would typically, not always but typically recognized the defense to libel. so if you plan as a defendant waited, i said that but it was true and you could prove it was true you one.
that became a contentious issue later on as we struggle to try to figure out whether putting the burden of proving truth on a defendant in a libel case itself inhibited right to freedom of speech from discouraging people who are unsure about whether they could prove the truth of what they said about someone in court from saying anything in the first place. which would tend to inhibit free speech according to that view. >> great. we will talk to be mostly about libel which is false and embarrassing statements, a separatist of law involving truthful but in piercing statements but that again is covered by the right to privacy and it's a question of intentional infliction of emotional distress or if you put someone in a false light. there's a huge debate today and made will get to it about whether europe can then undercard google and facebook to take down truthful but embarrassing statements people posted about each other. the right to be forgotten but that's down the road.
tell us what the ad says and what the objection of mr. sullivan was. >> the ad was a full-page ad in "the new york times" and it was aimed at trying to rally support for the civil rights movement and particularly dr. martin luther king. the ad said that law enforcement officials in montgomery, alabama, interestingly it didn't name any official, just as law enforcement official, had harassed dr. king had padlocked the dining home at the local college, had expelled students. it talked about student protests singing "my country tis of thee." it ran through about six paragraphs of describing civil
rights era activities in the montgomery, alabama, area. l. b. sullivan was the sheriff of montgomery, alabama, and basically said that the ad damaged his reputation and libel him with falsehoods, relatively minor to a dining room wasn't padlocked but some students were not allowed to eat in the dining room. the police didn't ring the campus with a police line. there was just a strong police presence at the campus. the students didn't sing "my country tis of thee." they sang the star-spangled banner, things like that coming in, sort of in a commonsense way you would say couldn't really have damaged his reputation. but they were false and. there were things in the ad that were clearly wrong. the problem there, sullivan said the new your times for libel
for damaging his reputation. even though the ad didn't mention him by name. it presented a never of difficulties. for one, "the new york times" in those days did not have a policy of verifying every fact in every advertisement. they verified that the people placing the ad were who they said they were, and that was as far as their responsibility went. so when he came to a trial and "the new york times" only real defense was to say that the ad is a true they really weren't any position to do that. first of all, the were falsehoods. and second of all they weren't really their falsehoods. it wasn't the new time setting it. it was the people who placed the ad saying it. so under the libel law in alabama at the time, this was a very kind of complex challenging
situation. >> great. while not great, but thank you. so "the new york times" faces really serious damages if they are held liable. reminded of how much they would have had to pay like 23 million in today's dollars and several million by the standards of the day but describe what the common-law libel in alabama was and then describe what william brennan's alternative was and what he held "new york times"." >> it's important to recognize that it wasn't only, excuse me commissioner sullivan who sued. there were five other lawsuits as well drop by the governor of alabama, by the mayor of montgomery, by other city commissioners, also linked about the same ad and all clinking though none of them were mentioned, that it was about
them and they all sued for $500,000 each which is huge is about today's currency $23 million. it all of them had one, which they surely would have, "the new york times" would've literally gone out of business. so it's very significant and it was not an accident. this was coordinated strategy to bring these lawsuits in an attempt to chill the new your times and other national media from time to spotlight i was going on in the civil rights movement in a in the south the only reason they said the ministers who placed the ad as well was to prevent, this is a technical jargon thing of law but it was proven that times are moving the case in alabama state court's were as a practical matter the fix was in to federal court where it was of equal chance that the times would've gotten a betterbetter shot. is one of the important to recognize about this, which is that this was, this lawsuit was
not some sort of bizarre, cooked up crazy theory under the laws that existed at that time. at that time what commissioner sullivan was a legend was a pretty standard definition case. if anybody out there read that add to injure his reputation, he had a claim. and it shifted the burden of proving falsity from commissioner sullivan to the times which then has the burden of proving truth or commissioner sullivan didn't have to prove he suffered any damages. damages were presumed. he didn't have to prove that "the new york times" was in any way at fault. fault was presumed. so that by simply showing that it was about him and that the words tended to disparage his reputation, if the jury saw 50 could recover $500,000. and that was the law not just in alabama but in pretty much every state at the time but it just wasn't, people didn't think about the strategy of bringing
cases like the ones of sullivan and his colleagues brought against the times for the purpose of inhibiting their freedom of speech. speech. >> steve, you've written a biography of justice brennan and this is a magnificent book because you so centrally involved both insulin and in all of, its progeny as you cut which is the case related to the first to stand in some ways detracted on it. brennan as you say was not a personal fan of the press to get some bad expense rebuild it been burned and yet he wrote an opinion come an occasion for dancing in the streets for friends of the first amendment the most important first amendment in the argument of the 20th century. >> briefly was going on in brennan's mind? how did he decide to resurrect madison's vision of the first amendment and overturn the sedition act and how did he come up with a standard that he did speak with her in in essence
was, and i mean this in a good way, was almost schizophrenic about the threat. in his personal encounters with reporters, he didn't particularly like the experience. he thought reporters invaded peoples privacy, didn't really show enough respect for the individual's they were writing about. but there was no greater believer than brennan and the importance of a free press and a democratic society but he didn't have to like everything they did, but he understood that you couldn't really be an effective democracy without a press as a check on government, a press that felt free to really be able to write freely about what was going on in the country. and so that's sort of the dichotomy that was present here in new york times v. sullivan. he understood and his colleagues did, too that one of the important things going on in this case was the officials in
montgomery were basically trying to drive the northern press out of the south. they didn't want stories on the front page of "the new york times" everyday about the way civil rights protesters were being treated about how desegregation was playing out in the early 60s. and if they could make it so costly for "the new york times," and other northern media to do business in the south, that they might pull out. at the time of the case, "the new york times" had already withdrawn their correspondence from alabama in hopes of being able to avoid being served with the lawsuit but the other thing i might just note and add to lee's earlier explanation, i think it's fascinating to remember, "the new york times" in those days had a situation of about 600,000. 30 copies were sold in the entire state of alabama. [laughter]
.01% of their circulation, or something like that. don't hold me to the math. but, so brennan understood right away both the civil rights importance of this case but also the opportunity to put forth this notion that a michael john notion, madison and jefferson notion, that a free press was essential to the functioning of the democracy. to do that he came up with a new constitutional standard, one that had been used in a couple of state court decisions prior to 1964. the jargon term which he later came to regret, the phrase actual malice, a public figure a public official could not sue for libel and less the public official could prove actual malice. actual malice meant that the
statements were published with reckless disregard or knowledge of their falsity. so not just negligence. i could be a sloppy reporter but not the intent on detaining somebody. i could just make a mistake. that's not reckless disregard. brennan intentionally set a high standard, made it difficult to this is how it sort of ties in to the notion of seditious libel, that we want to be able to freely report on government on public officials. and only when reckless disregard takes place, or knowing falsity can a public official in sue and recover for damages. >> okay. so as you say brennan came to regret the term actual malice because juries thought that it meant that the reporters didn't
like the official and that's not what it meant. it meant you had to know that it was false or publish it with reckless disregard whether not it was true or false. lee, if god forbid i had a libel problem as a journalist i would turn to you. sal wanted now ask you about some contemporary applications that are very standard to write everyone is talking about the rolling stones story about the you the alleged rape case and many of my journalist colleagues have asked me could the people who are written about uva sue on the grounds that this was reckless disregard for the truth since it was false? i ask the road right back to them, e-mail lee levine. [laughter] i'm not asking, could someone sue rolling stones? >> the question is could they sue successfully i guess. and in some ways not knowing anything about the underlying
facts of the nine what i know in the newspaper, and it will depend on who they are. that gets to another major issue that the supreme court with justice brennan leading the way tried to do with after solving the sullivan dealt with only public officials. the rule under sullivan was a public official suing for libel or defamation have to prove actual malice, disregard of the truth. in the years that followed the court grappled with the issue of whether, who else, if anybody else had to prove actual malice. brennan led the charge first in a series of cases expanding it so that anybody with, who was a public figure. not just to help topic office but there were a public figure. they too had to prove actual malice. and for a time when corralled enough justices to have a rule that any publication that address the matter of public
concern, anybody who sued about the publication whether they were a public figure or a public official or not have to prove actual malice as well. that victory proved to be short-lived and in 1974, ran and found himself in the minority when a different majority of the court held know, private individuals, he boarded the public officials nor public figures do not have to prove actual malice. they only have to prove negligence in order to recover. simply being not careful enough or unreasonable in how you went about reporting the getting back to the uva case if the plaintiff in the uva case was a public figure, let's say the fraternity itself sued, the recent argument that a national fraternity is a public figure, they would have to prove that rolling stones published that article with either actual knowledge of knowledge or reckless regard for the truth. pakistan that rolling stones might not come some recent rolling stone might not be able to meet.
on the other hand, the person doing with the private person, one of the people who was mentioned in the ad, mention in the story or one of the alleged perpetrators, there's a reason will argue they are not public citizens but they don't have to prove negligence. spent on that negligence question, assuming as we read the rolling stone nearly called the the alleged victim and didn't confirm her story, could that possibly qualify as negligence? >> it could. it would of course be for a jury to decide. one of the things that's pretty clear, although not universally clear, is that when you're a private figure and the standard is only negligence which it is in virginia courts do not make factual determinations about whether this was negligence or not but it goes to a jury and it's up to the people sitting in the jury box to assess the evidence and determine whether
or not rolling stone did or didn't do under the circumstances rose to the level of negligence. on the other hand, it was a public figure seven, the issue of actual malice that the standard justice brennan crafted and sullivan has been the by the supreme court and other courts as an issue of law a standard in the first instance the judge has to apply. one of the very important considerations and protections the press as when the plaintiff is a public figure a public official is about some work before a trial a judge makes the determination of is there enough evidence by which a jury could find actual malice? and more often than not the judge concludes no there isn't a throws the case out so the president has to go to the burden of the expense of an actual defamation trial but that's less frequent the case when the plaintiff is not a public figure. >> steve, lee has used by using the rolling stone case as an example hopefully shows
o'sullivan evolves to distinguish between public and private figures and set a different standard for them. i want you to further help us understand the evolution of the court. i gather from the very beginning that was more first amendment from a position held by justices black, douglas and goldberger would've abolished all defamation laws that permitted liability for public officials. would black and douglas and goldberger also have forbidden liable for private figures or not? >> i don't think they would have gone that far. black and douglas as is well known that the position that when the first amendment says congress shall make no law it literally meant no law. so that any law that permitted libel suits against the media for printing things about public officials would violate the first amendment automatically. it wouldn't be an actual malice standard to there just wouldn't be any lawsuit period.
they didn't go so far i think is to say they wouldn't ever allow any libel suits against private figures. but their presence on the court in these cases made it really challenging in that the core of the court in the 1960s was the liberal core that included brin and chief justice earl warren black, douglas, goldberg. it would've been kind of a natural majority in these cases but brennan couldn't easily get the votes of black and douglas and goldberg as they expanded sullivan to apply to a because of public officials and public figures. so the interesting part of this book i think is that every one of these cases is from solvent for the next 30 years, is just
really hard-fought. constant tug-of-war. sullivan looks like it creates this clear, broad forceful principle about the first amendment, and it does but every iteration of it after sullivan is just a battle and a struggle. >> it is indeed and the drama comes in the resurrection of the debate between the justices from their private papers. tell us about the criticism of sullivan. we had a podcast on the actual 50th anniversary itself the tween geoff stone and richard epstein. and here's a plug, ladies and gentlemen, for our and a couple we did people podcast. we are calling up the top scholar in the country to debate the constitutional issue of the week. these podcast which can find on itunes and on our website working up to 300,000 downloads a week.
i juan garcia spenders to check them out and it's just a thrill to have such a civil debate about such controversial issues. richard epstein basically said new york times v. sullivan was wrongly decided to we should've kept to the common law of libel and give the public officials more ability to get civil recovery for calculated falsehoods. he embraced the position of justices clark and harlan and fortis. tell us about what the criticism of sullivan were and what the more conservative justices would've preferred as an alternative. [inaudible] >> several layers of criticism. one is i can do from justice scalia who sits on the court currently the always trots out "the new york times" versus old as his example of a case in which the supreme court got it wrong. because he views the issue of constitutional adjudication is looking back as what the framers intended come with the original meaning was. he points to the sedition act and says how can you say the
first amendment prohibits seditious libel when the ink was barely dry on the bill of rights when congress passed the sedition act? brennan's answer was well there was a disagreement at that time and the author of the bill of rights, james madison and thomas jefferson thought differently, and that brennan says in sullivan the verdict of history is that the sedition act was unconstitutional when it was passed and most people most informed people recognize that. is one level of criticism. the other level is it's a practical matter, even as applied to public officials having this kind of come as justice brennan, a vital debate has consequence. make the people less interest in money for public office. it destroys reputations and careers when things are false. it creates too much of a breathing space for truth.
asked the court in 1974 said the common law of libel was a claim that didn't require false pics of the required at least a showing of negligence even by private people, that you were giving the press and others the right to destroy reputation, even when they been negligent done something wrong and when it was false and even windows actual injury to people's reputation. so that became the more contemporary architect. >> the court expanded sullivan from public officials to public figures and then to any newsworthy matter but that that race and hardlines of unquestioned but who counts as a public figure and there's the famous dirks case where justice brennan advocated for standards embraced by the lower court to our members in law school.
he said you are a public figure if you thrust yourself into the vortex of public debate. and justice powell's adopted a version of the standard and said, that's fair because public officials of or access to the media. if someone says something false they can respond to is that true nature of the internet? now, everyone is a 15 minute celebrity and everyone can thrust themselves into the internet for text and also respond to falsehoods. how has the internet change the definition? >> i'm not sure the courts have entirely caught up to the changes that the internet has made, but the ability, both ways, the building of something that you say about somebody to go viral instantly you know i turn to jeff and say something nasty about lee and jeff tweets it out and it's in moments you know thousands of people are reading it went at that we're having a private conversation.
but the flipside is leaves ability to then send his own without or leave of the means of medication to try to dispel whatever it was is there as well. so i think the original kind of notion that the court relied on public figures and public officials having a better ability to be able to try to tell their side of the story really isn't as true as it was. i just have to add that as to the 1974 case that you talk about, you know elmer dirks had every bit of that ability to go to the media and tell his side of the story. the court didn't see it that way in a very prominent civil liberties lawyer in chicago but the court considered him --
>> a chicago lawyer hired like ferguson case but he was hired to represent chicago teenager killed by the chicago police officer, the john birch society to some of being a communist essentially and the court holds that he is a private figure. technology has -- its virtues and its challenges. lee, registered because you're the leading guy on this. how was the internet changed things? the represent private figures of alleged they had been defamed on the internet? how do they fare under the negligence act speak with i represent people are being sued by private individuals or things that are set on the internet. it's very interesting because if you talk to but for a lack of a better euphemism i'll call silicon valley companies that are at the forefront of digital communications, google, twitter
they will tell you new york times v. sullivan and everything they can after it is very nice and we're happy to have it out what's much more important to us is a law that congress passed not too long ago called the communications decency act which has a section called section 230 which provides that internet service providers and website hosts can't be sued for libel at all if they are simply transmitting what somebody else said. that is a huge expansion of the degree of protection. i think it's fair to say that google into it at all those things wouldn't exist today are at least not in the same form if they could be sued for false and defamatory statements that are disseminated by other people over there facility. a website like "the new york times" website or cbs website, if they could be sued for what they put out on the internet that other people created. talk to folks in silicon valley. they will do that for them
section 230 is the new new york times v. sullivan because it has provided a degree of freedom much broader on the internet and the newspaper or television station for discerning the same thing under sullivan. >> that leads us back to europe which does not have a version of section 230. steve, i will ask tonight because he litigating these cases, how easy is it to sue for libel on the internet in europe without that community and without the protections of solid? >> there's nobody knows more about privacy than you, sir. but i will try to do my best. europe has always valued privacy in competition with freedom of expression more than we have. it's a cultural thing. it's an embedded kind of thing in the dna of folks who live in
europe. and as a result, their long reflects a much more forceful protection of privacy. and the most recent manifestation of it, which is increasingly troublesome to u.s. companies, is the so-called case be forgotten. and the idea is that if something is published about you, even if it's true and you decide years later that i don't want that out there i don't want people to search for my name to find out that when i was in high school i attended a party and got really drunk and actually got told off by the police. so in europe you can now go to your local minister of data protection and say, i would like google to take that down. and the european courts have said in all the countries that are part of the eu you have a right to have it taken down. it is a right to be forgotten literally. answers the big question now which is about to be litigated is whether or not europe can
force google to take it down not just on google's denmark but google u.s., the main google website so you can't see it, so if you want to go back and research the history of someone who's running for public office, you won't be able to find out what their indiscretions or even their indiscretions of 20 you to go. >> you described beautifully. the right to be forgotten comes from a french writer called -- the right of publicity and which is completely french. [laughter] the french all want to be forgotten. americans want to be remembered. but as lee says, i think this is the biggest clash between american notions of free speech and european notions of privacy in the 21st century. if i object, so you are tweeting or one of the c-span folks it's weeding this is a boring interview, and i object, this violated my dignity then google
has to decide whether or not i'm a public figure or whether the information is well with to a matter of literary scientific or journalistic interest. if it guesses wrong and they privacy commission and dublin says my dignity has been affronted, google is liable in some version of the law to up to 2% of its annual income which last you was $50 billion per incident exigency this concentrates the mind. i hear some gasps in our good american first amendment audience. steve, what would brennan have made of this right to be forgotten? >> i mean, i think you know he respected the right to privacy and help advance it in many other contexts, but i think he was a big believer in more information and in the marketplace of ideas. if you're going to be offended by the expansion of libel law beyond public officials, he had
many opportunities to sort of voice that. the vast expansion of public figures to sports figures, the movie stars to writers, never seemed to bother him. so i think he would kind of stay where he was, stay on the same side. >> i'm sure you're right. what other folks on the other side which are from people at justices white and also harlan and other justices, more of a concern but dignity and more of if you're that the calculated lie had no social life and therefore, should be prohibited. might they be more sympathetic? >> yes, but i think in one sense they were at least in brennan's mind i think they were talking past each other. i think right from the start even in new york times v. sullivan inside the court from reviewing the justices, there was discussion about the deliberate liar or the
calculated lie. and bring its position all along was, we are not authorizing that, we are not protecting the calculated lie. we are not encouraging that in any way. we are trying to draw a line twain legitimate mistake and freedom of reporting and freedom of discourse, ma and the delivered or calculated lie. but you at justices like white and others who firmly believed that that should be a matter of concern, and that brennan was in some way undermining our ability to go after the calculated lie there. brennan believing that he was never doing that. >> excellent. i have more questions but we have a number of questions from our great c-span viewers and from our panama national constitution center audience. once again you can continue to tweak your questions to ask constitution center using the hashtag #nccbillofrights.
here is our first question from twitter. has adversarial journalism à la greenwald and violent historically been threatened as it is today? lee. >> that's a very good question. and the answer i think is probably not. in the sense that i think it is more under attack today than it has been in the past. not because of defamation law. i think sullivan has done a very good job of protecting from being sued for libel. what has changed however, is that you are more at risk for being hauled off to jail for attempting to protect the confidentiality of their sources, or for reporting what the government needs to being classified pashtun and put him in line for filing the espionage act that prohibits publishing
classified information. that might do harm to the national security. and we have gone through a period in the last few years where the government has first for the first time ever kind of record in an affidavit filed in a federal court in the district of columbia saying a journalist could be prosecuted under the espionage act for publishing classified information. but at the same time we have since had the attorney general of the united states state publicly that that will never happen so long as he remains attorney general but as you know he has said that his resignation. [laughter] he is not likely to not be around for long so we don't know for how long. >> steve, the espionage act the heir to the sedition act of 1798 now being invoked by the executive branch and questionable whether journalists can be prosecuted. what would justice brennan have said about the prosecution of a
journalist under the espionage act? >> and the pentagon papers case in 1971, he was pretty firm that there was an extraordinary burden on the government to demonstrate a genuine threat to national security, imminent general and distant genuine threat for someone to be prosecuted for publishing truthful information to pentagon papers were truthful account of taint by the new times and other media. the court was divided in a sense that some justices left the door slightly open that there might be times when the government could meet that standard. were as i think other justices made it seem as though the government would almost never be able to meet that standard. if you read brennan really carefully, he was one of those who left the door h.r. but it
was such a tiny crack that i'm not sure that dust mite could through the crack -- door a jar. >> now we just in which between all statements of fact which is common-law libel that we've been talking about and now truthful but embarrassing statements which are covered by the pentagon papers case and which justice brandeis in the brandenburg case said could only be suppressed if they were intended to an likely to cause imminent lawless action. that is the crowning jewel of the american free speech tradition but it's picked up on the standard that he introduced in his concurrence in the whitney case in the 1920s but he really need as you suggest evidence that the speech is not only expensive advocacy but that is likely to lead to imminent violence, and that is something that america embraces and europe most emphatically does not. here is another question. could president obama's to a
publication 49 is a berth in the united states? >> -- for denying. he could, and technically under libel law if that was viewed as a defamatory statement that it somehow injured his reputation he could win if he could show actual malice that the person saying it even knew it was false or had reckless disregard for the truth. so far at least no president has brought libel suits while they've been in office. i think as a practical matter it probably isn't good politics. >> what would account for someone just reads it on the inner part basically in wikipedia and assumes it's true, does that cover you for actual malice? do you have to do some confirming? >> that's an interesting question. it comes up among other things, the rolling stone issue you're talking about before. in one of the cases that we discussed in the book justice stevens wrote an opinion for the
court that seemed to expand the meaning of actual malice. it used to mean that you had to know that something was false or you needed to know that it was probably false. reckless disregard of the truth means a high degree of awareness of probable falsity. in this case in 1989 justice stevens said they could also be proved by deliberative avoidance of the truth. you're kind of like the ostrich who like the ostrich who like the ostrich who stuck her head in sand and didn't want to know whether it was true and just went out and said it. that might be enough evidence on which the jury could find reckless disregard of the truth. that concept has not really been attacked in the law but it is a notion that if you willfully blinded yourself to the truth and didn't do anything to try to get whether it was true or false, that might be enough. my own view is that as the issue gets litigated more and more it's going to be demonstrated to not be enough because of the emphasis in justice brennan's
opinion of actually having a subjective high degree of awareness, of at least probable falsity. >> apropos of what we're talking at the outset. if we were a country that recognized seditious libel, the birthers might be guilty of seditious libel. >> good thing that sullivan is on the books and the best way you can cover yourself against a claim of reckless this regard is get your facts from a nonpartisan website of the national constitution center, national constitutioncenter.org. steve, was there any distinction made by the fact the new times and justice sultan -- an issue of reporting as in the rolling stones example? >> well, in 1964 commercial speech was not entitled to any real first amendment protection. the court didn't really do this as commercial speech. it you did as political speech
because of the content of the ad. there was some discussion among the justices, but was not really treated as a case -- if it were today and it were not viewed as political, it was viewed as commercial, it would be subjected to a different first amendment standard and entitled to somewhat less protection. >> that was a dun & bradstreet case in 1983 that you said landmark that wasn't. spent dun & bradstreet draws a number of distinctions about private speech and particularly private commercial speech basically being all bets are off. if it's entirely private commercial, there's not much first amendment protection at all for the publication. >> great. i'm going to take the last question just because it brings us back to our celebration are
displayed one of the 12 original copies of the bill of rights the question is why were the original first amendment to the bill of rights dropped? or perhaps another way why were they originally included in the bill of rights if they don't seem to affect individual rights? as lee said at the beginning for most of the framers, most of the amendments in the bill of rights were either unnecessary or dangers. unnecessary because everyone agreed that human beings have certain natural and unattainable rights by virtue of their being human and, therefore you didn't have to write it down. and dangers because of the road and people might assume if it wasn't written down it wasn't protected. there were certain provisions regarding the apportionment in congress which were very important to the congress give the proposed it but less galvanizing to ratifying the convention. i think that's what the original first amendment wasn't ratified into the 1990s primping congress and raising its own salad without an intervening election.
the question of apportionment in congress was not as galvanizing, and that's why the amendment that we consider the first was also the want of madison considered the most important along with his desire to forget the states as well as the federal government from abridging freedom of speech and religious conscience. we'll pick up this discussion in our next talk which examines the legacy of thomas paine and edmund burke. paine a great event of natural rights in addition of john locke. tradition and wisdom of the aged. we're going to take a 15 minute break and then return to our wonderful ncc will a price book fair intelligence and bigger and elimination, please join in thanking lee levine and stephen for meal. [applause]